American Law Institute’s Sexual Assault Proposal: Massive Sex Criminalization

The American Law Institute is considering revisions to the sexual assault provisions of the U.S. Model Penal Code. The Model Penal Code provides expert legal guidance for the drafting of state criminal codes. As a memorandum from American Law Institute Members and Advisers indicates, the proposed sexual assault revisions imply massive sex criminalization.

Some additional points to consider:

  1. Changes the Model Penal Code played a key role in promoting broad, preemptive domestic violence emergency law that has been central to the rise of mass incarceration in the U.S. from 1980.
  2. Under reasonable parameters for deterrence, a massive expansion in criminalization of sexual assault will have large costs in incarceration and relatively small effect on sexual assault.
  3. The criminal justice system is highly biased against men. Reporting of sexual assault is highly biased against men. U.S. jails and prisons now hold ten time more men than women. Massively expanding criminalization of sexual assault will increase the already highly disproportionate incarceration of men.

The law profession has failed to bring good reason and objective expertise to criminal law. Grotesque anti-men gender stereotyping pervades discussion of domestic violence in law review articles. Discussion of sexual assault is even more biased. For example, a leading law review published an article proposing criminalizing what it defined as reckless sexual behavior. Despite being deeply flawed and displaying anti-men gender bigotry, this article attracted little critical peer review. The American Law Institute should promote the best thinking of the American legal profession, not the worst.

Most sexual victimization, like most violent victimization generally, isn’t punished through the criminal justice system. If evaluated without gender bias, sexual victimization is roughly equally balanced between women and men. Sexual criminalization, in contrast, is highly skewed toward men. Massively increasing sexual assault criminalization could greatly raise the already extraordinarily high incarceration prevalence and make even more unequal the already highly disproportionate incarceration of men.

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